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The following guest post is from Michael Thad Allen. He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.

In August, an unusual legal scandal prompted soul searching among proponents of the #MeToo movement and advocates of Title IX.

New York University found that a prominent feminist scholar, Avital Ronell, age 66, had sexually harassed her male graduate student, Nimrod Reitman, half her age (who is gay and has since married a man). Given that Professor Ronell also identifies herself as queer, the story brought enough titillation and hypocrisy to light to make a spring in the moral imagination of almost anyone go “boing-oing-oing.”

In July of the previous year, Reitman filed his Title IX complaint alleging sexual harassment, stalking, and sexual assault over the course of the three years he had pursued his PhD as Ronell’s advisee.[1] He claimed, among other things, that she contacted him at all hours, forced him to read to her in bed, kissed him, engaged in “spooning” by pushing her buttocks into his groin, and placed his hands on her breasts.[2] But after an 11-month investigation, NYU found Ronell responsible only for sexual harassment but absolved her of sexual assault and stalking.

In June 2018, a confidential petition of Ronell’s supporters to the President and Provost of NYU surfaced in the blog of Chicago law professor Brian Leiter. It had circulated confidentially since May among her colleagues throughout academia.[3]

The letter was authored by President Elect of the Modern Language Association, Judith Butler, a fellow feminist academic luminary. She and numerous other signatories made clear that, in the stratospheric layer of contemporary academic feminists, this Title IX action against one of their own was a legal “nightmare.” Among other things, they announced, should NYU find Professor Ronell responsible and terminate her, “the injustice would be widely recognized and opposed.”

Out of one side of their mouths, Ronell’s supporters assassinated Reitman’s character. Shockingly, the letter admitted to knowing nothing about the facts of the case, but the professors nevertheless accused Reitman of “malicious intention.” Out of the other side of their mouths, they vouched for the “grace, the keen wit, and the intellectual commitment of Professor Ronell.” Some, such as University of Texas Professor Diane Davis, also declared the entire matter to pervert Title IX (Davis has since equivocated about this statement).[4]

Davis was not alone in speculating whether a complaint brought by a man against an avowed feminist was hijacking Title IX “in a way that hurt women.”[5] But to their credit, others, such as the founder of the victim-side advocacy organization Know Your Title IX, Dana Bolger, robustly defended Title IX as a civil rights statute that protects everyone from discrimination on the basis of sex—including men like Reitman. They have also pointed out the parallels between defenses mounted on behalf of the likes of Harvey Weinstein and the apologetics and victim blaming that Ronell’s supporters are mobilizing in her defense.[6]

The next act in this drama came in mid-August. Reitman filed suit in New York state court against Professor Ronell and NYU. The facts of Reitman’s case are well pleaded, and the Complaint contains a wealth of assertions that had not previously come to light. Excerpts from contemporaneous emails flesh out allegations of sexual assault and stalking.[7]

Predictably, one of Professor Ronell’s defenses has been that all her interactions with Reitman were consensual. Theirs was, so Ronell, a harmless discourse between “a gay man and a queer woman, [with] a penchant for florid and campy communications.”[8] Before the Complaint, the media had quoted only a few snippets from these communications. The sheer volume of direct quotations in the Complaint and their earnest sappiness cast more than a little doubt on Ronell’s proffered explanation. They don’t seem “campy.” They seem mawkish.

Ronell is apparently an inexhaustible fountain of pet names and pillow talk. To quote just a few examples, she calls Reitman “sweet companion-Prince,” “my astounding and beautiful Nimrod … sweet kisses & champagne.” She pines for him: “Planting kisses firmly, holding you throughout in gentle accompaniment.” She asks, “my special one … are you in the afterglow of our enchanted visit…” “I feel you with me and you’re preparing already my bubblebath …”[9] These kinds of statements go on and on, paragraph after quoted paragraph.

Contemporaneous communications between Reitman and others also show that he complained about Ronell’s behavior and anguished about how to extricate himself from her domination.

At least at the pleadings stage, this evidence tells a consistent story. NYU and Ronell will have a chance to tell their version of events, but the volume of facts in the 58-page complaint begs the question how NYU could have absolved Professor Ronell of charges of sexual assault and stalking.

To date, however, no one has analyzed the legal aspects of the case. One question jumps out at anyone who has practiced in the Title IX field: namely, why Reitman’s legal team limited his Complaint to state-law claims only. There is no Title IX claim against NYU.

Title IX provides a private right of action against the university, at the very least on a theory of hostile environment. Reitman appears to have a good retaliation claim as well. Multiple NYU professors signed the Butler letter, impugning Reitman’s “malicious” motivation and threatening to oppose sanctions against Ronell—at least one being a former NYU Dean of the Graduate School.[19]

And Reitman does include well-pleaded claims for hostile environment, retaliation, and other theories of discrimination.[20] Curiously, he does so only under the municipal code of New York City (under the city’s Human Rights Law, NYC Administrative Code § 8-107).

He also pleads tort claims of negligent infliction of emotional distress and negligence in hiring, supervision, and retention, but no breach of contract—which should also be available given that the policies and handbooks of the university constitute a binding contract under New York law.

There are good reasons why an experienced plaintiff’s attorney might want to avoid a federal Title IX claim. Reitman’s case as now pleaded will stay in state court and avoid removal to the Southern District of New York. This may be a conscious attempt to maintain a “home-field advantage” in the state court system.

It is also possible that Reitman’s attorney is not familiar with potential claims and defenses under Title IX. Perhaps tellingly, the Complaint asserts that Professor Ronell was the subject of a prior Title IX investigation for raciallydiscriminating against another NYU student.[21] But Title IX does not cover race discrimination. (Although such discrimination is clearly actionable under Title VI of the Civil Rights Act of 1964).

Reitman’s lead attorney, Donald Kravet, is an experienced New York civil litigator. His practice appears to concentrate chiefly on state-court commercial cases.[22] But he is clearly no stranger to federal court. At this stage, he also has plenty of time to amend the Complaint. The progress of Reitman’s case will continue to be interesting, not only because of contemporary debates over sexual harassment and Title IX but also from a procedural standpoint.